A.M. KUNHIKOYA@ KOYA versus STTE OF KERALA

Citation: [1993] 2 S.C.R. 692 · Decided: 26-03-1993 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Case Partly allowed

Judgment (excerpt)

A 
A.M. KUNHIKOYA@ KOYA 
v. 
ST A TE OF KERALA 
MARCH 26, 1993 
B 
[DR. A.S. ANAND AND N.P. SINGH, JJ.] 
Indian Penal Code-Sections 148, 149, 302, 304 Part II and 323-Ap-
pellant-Taking into account evidence of PWs and circumstances of 
case-Held appellant had knowledge that injury was likely to cause death-No 
C intention to cause death of victim. 
The appellant along with others was tried for offences under Section 
302 read with Sections 148, 149 and 323 of the Indian Penal Code. 
The case of the prosecution was that on 16.9.80 Mammed Kutty at 
D 6.00 a.m. in the morning pelted stones at the house of the deceased. At 
about 12.00 noon while Mammed Kutty and his brother Abdulla Kutty 
were passing in front of the house of the deceased, a protest was made by 
the deceased in respect of the morning incident which was denied. 
E 
At about 2.00 p.m. when the deceased was sitting with his wife (PW 
4) and others on the varandah of his house, 5 persons including the 
appellant came to his courtyard and challenged him to come out, if he 
wanted to beat Mammed Kutty and Abdulla. The deceased stepped out 
into his courtyard and asked the accused persons not to create a scene, 
when the appellant and the other accused gave some blows to the deceased 
F 
on his hand. Thereafter the deceased raised his hand to give a blow to the 
appellant, when the appellant took out a dagger from .his waist and gave 
an injury on the upper part of the chest of the deceased near the left 
shoulder and above the armpit. The deceased ran towards the house of 
PWl and fell on the varandah. Therefore, the accused persons escaped. 
G The victim was removed to the Medical Hospital where he was examined 
by PW 9, but soon thereafter expired. 
The F.I.R. was lodged at 7.15 p.m. and after investigation the char-
gesheet was submitted against the five accused persons. At the trial the 
prosecution examined 4 eye witnesses, PWl to PW4, and PW8 the doctor 
H who held the post mortem examination. 
692 
A.M.KUNHIKOYAv. STATEOFKERALA 
693 
The trial court on consideration of the materials on record came to A 
the conclusion that the charges levelled against the accused persons had 
not been established beyond all reasonable doubt, and on that finding 
acquitted all the accused including the appellant. Great importance was 
attached to the injury found on the per; m of Abdulla and adverse in-
ference was drawn against the prosecution case. 
On appeal by the State, the High Court convicted the appellant 
under Section 302 and sentenced him to undergo rigorous imprisonment 
for life. Another accused (Alavi) was convicted under Section 323 of the 
Penal Code and sentenced to payment of line of Rs. 250. The acquittal of 
B 
the remaining 3 accused persons by the Trial Court was affirmed. The C 
High Court held that mere non disclosure of the superficial injuries on the 
person of Abdulla even if those injuries had been caused in the same 
occurrence, do not in any manner affect the presecution case. 
In the appeal to this court it was contended on behalf or the appel-
Iants that the statements made in the First Information Report, the 
evidence of the eye witnesses in connection with the morning incident of 
pelting of stones, show that it was a concoction and that none had pelted 
any stone on the house of the deceased, and that if this part of the 
prosecution case is disbelieved then it has a bearing on the main occur-
rence itself. It. was further submitted, that the prosecution had suppressed 
the real manner of occurrence in as much as Abdulla was first assaulted 
by the prosecution party on the same day at about 1.30 p.m. and that he 
was hospitalised after receiving the injuries, reliance being placed on the 
evidence of DWI who had stated that he had examined the injuries on the 
person or Abdulla on 16.9.80 at 4.30 p.m. 
Allowing the appeal in part, this Court, 
D 
E 
f 
HELD: 1. It is well settled that if the evidence of the eye witnesses is 
held to be reliable and inspires confidence then the accused cannot be 
acquitted solely on the ground that some superficial injuries found on the G 
person of the accused concerned, had not been explained by the prosecu-
tion. [696 HJ 
In the instant case, so far as the four eye witness are _concerned they 
have been named in the FIR. The FIR was lodged at 7.15 p.m., the same 
evening, within two hours of the death or the victim. The FIR mentions the H 
694 
SUPREME COURT REPORTS 
(1993) 2 S.C.R. 
A 
details of 

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